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Tiamonick Ltd v Varage [2019] PGNC 383; N8078 (18 October 2019)

N8078

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 215 of 2017

BETWEEN:
TIAMONICK LIMITED
Plaintiff

AND:
WARI VARAGE
First Defendant

AND
PM FIRE PROTECTION SERVICES LIMITED
Second Defendant

Kokopo: Susame, AJ
2019:6^th September & 18^th October

COST – Notice of Motion - Judgment on Taxation Cost - Order 22, Rule 62 National Court Rules –Exercise of Discretion of Taxation Officer- No obvious error in the exercise of the Discretion Sum of K8 735.00 taxed cost not exorbitant

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases

Re Glassfurd (1910) 27 VCR 357

Counsel:

Mr. David Aina, for the Plaintiff
No appearance of Defendants

DECISION

18^th October, 2019

1. SUSAME AJ: Plaintiff is seeking a judgment for taxed cost by a notice of motion filed on 13^th September 2019 by authority of Order 22 Rule 62 of the National Court Rules.

2. It further seeks order for:

• Interest at a rate of 8% per annum,
• Cost of the application,
• Any other orders the court deems fit.
• Orders of the court to be abridged to date of settlement by the assistant registrar which shall take place forthwith.
  

3. Mr. David Aina, the Managing Director of the plaintiff prosecuted the motion without the benefit of his lawyer Ms. Marubu who was out of the Province on another engagement.

4. Motion was set down for hearing on the motions day, Friday 20 September 2019 at 9.30am. Copy of the motion had been served on the defendant’s lawyer, Paul Yange of Islands Legal Services personally by Mr. David Aina. He has sworn an affidavit of service on 17 September 2019.

5. There was no appearance of the defendants and their lawyer. Reasons for their non-appearance are begging. Court proceeded to hear the motion ex parte.

6. Plaintiff relies on his supporting affidavit sworn on 10 September 2019 and filed on 13 September 2019. Annexed to it is the copy of the certificate of taxation filed on 16 May 2019 by the Taxation Officer, Mr. Baka Bina and a letter sent to the defendants Lawyer, Mr. Paul Yange.

Brief Facts & Findings

7. The case emanates from proceeding, WS 215 of 217 plaintiff initiated against the defendants for unpaid monies amounting to K41, 850.00 for hire of plaintiff’s motor vehicle back in May 2016.

8. By a notice of motion plaintiff successfully obtained a summary judgment before Anis J on 28 May 2018. The judgment included order for cost which was to be taxed if not agreed. (Document 9 dated 29 May 2018).

9. Itemized bill of cost (document 29) was prepared and filed by Ms. Marubu of the plaintiff on 11 September 2018 amounting to K19, 820.00 for Taxation Officer’s deliberation. That bill of cost went before the Taxation Officer on 15 May 2019. It was taxed and reduced to a sum of K8, 735.00 for which plaintiff is seeking judgment.

10. It is unclear if the defendants and their lawyer attended Taxation Officer’s proceeding on 15 May 2019. Nonetheless, I find as a fact no objection to the taxed cost came from the defendants. A copy of the certificate of taxation and a letter was served on the defendants’ lawyer, Mr. Paul Yange on 17 June 2019. These facts have been attested to by David Aina in his affidavit.

11. Taxation of cost is a matter of discretion of the Taxation Officer. Usually court will not interfere with the Taxation Officer’s assessment on quantum unless discretion was exercised in a manner manifestly wrong. (Re Glassfurd (1910) 27 VCR 357).

12. I do not consider taxed figure of K8, 735.00 is exorbitant. The figure represents about 44 % of the initial bill of cost that went before the Taxation Officer. I cannot find obvious error committed by the Taxation Officer in the exercise of his discretion.

13. There is no apparent reason for this court to refuse judgment for the plaintiff. Accordingly, this is the judgment of the court.

1. Defendants shall pay the sum of K8 735.00 as taxed cost.
2. Defendants shall pay 8% interest per annum from the date of filing of this motion until judgment is settled pursuant to Interests on Debts and Damages (Judicial Proceedings) Act 2015.
3. Defendants shall pay K1,500.00 for cost of this application
4. Judgment of the court is abridged to the date of settlement by the Assistant Registrar which shall take place forthwith.
   

Marubu Lawyers: Lawyer for the Plaintiff
Islands Legal Services: Lawyer for the Defendants